CEO15 v Minister for Immigration
[2016] FCCA 2795
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEO15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2795 |
| Catchwords: MIGRATION – Judicial review. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 477 Federal Circuit Court Rules 2001 (Cth), rr.44.05, 44.12 |
| Cases cited: MMM v MIA (1998) 90 FCR 324 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 |
| First Applicant: | CEO15 |
| Second Applicant: | CEP15 |
| Third Applicant: | CEQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2374 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 22 September 2016 |
| Date of Last Submission: | 22 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| The Second Applicant: | In Person |
| The Third Applicant: | In Person |
| Counsel for the Respondents: | Ms Gangemi |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
The application filed 22 October 2015 be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2374 of 2015
| CEO15 |
First Applicant
| CEP15 |
Second Applicant
| CEQ15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of the Tribunal’s decision to affirm a decision of the delegate to refuse the applicant’s application for a protection visa. The applicants are a family of three, being the wife, her husband and their young daughter. The husband and daughter are part of the application as the wife’s dependants. The applicants lodged an application for a protection visa on 27 June 2012. The delegate of the Minister refused the applicant’s visa application on 14 August 2013. The applicants then applied for a review of the delegates’ decision, which was lodged on 30 August 2013.
The applicants were invited to appear before the Tribunal and appeared for the Tribunal at hearing on 11 February 2014. The requirements for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal’s decision set out the criterions for a refugee, and addresses the Refugees Convention requirements, which is that the applicant must be outside their country. This is the case here, the applicants are from India. The applicants must establish a fear of persecution which must involve a serious harm to the applicant of a systematic and discriminatory nature. The persecution must have an official quality in the sense that it is an official or tolerated by the authorities of that country, but the threat does not need to be as a result of government policy. The persecution must imply some sort of motivation on the part of those inflicting the persecution for infliction of harm.
Importantly, the fear of persecution the applicants have must be for one or more of the Convention reasons. That is, it must be based on race, religion, nationality or membership of a particular social group or political opinion. Accordingly, personal or family disputes, unless they fall into one of those categories under the Convention, cannot support the requirements in the legislation. The fear of persecution must be a well-grounded fear, that has an objective requirement to it. Whilst a person may have a subjective fear, it needs to be a well-founded fear in order to satisfy the refugee criterion under the Migration Act.
The Tribunal sets out the applicant’s claims in its decision. The Tribunal records that the applicant claims that she left India to pursue higher education and better prospects. The applicant’s wife claim is based on her relationship with her husband, which essentially was a marriage for love and not a marriage approved by her family. The applicants are from different castes. The wife claims that she received a resolution from her community stating that they were going to boycott her because she married in contravention of the community rules. She says she was fearful because of threats as a result of this action. She also claimed that the Indian authorities would not be able to protect her and her family.
The Tribunal sets out the statutory declaration that the applicant provided on 3 February 2014 at [26] of its decision. That statutory declaration is lengthy, consisting of 66 paragraphs. I will not repeat the contents of the statutory declaration here. The Tribunal refers to also having received a statutory declaration by the applicant husband. The Tribunal records that it received detailed submissions from the applicant’s representatives and refers to the content of those submissions. The Tribunal accepted that the applicant belonged to the Patel caste and that it is a practice within that caste for families to arrange the marriages of their children. It accepted that it was plausible that the wife’s parents would expect her to comply with their cultural traditions and marry the person they had arranged for her.
The Tribunal further accepted that the applicants have a love marriage or a marriage of their choice. The Tribunal also accepted the applicant’s evidence that the applicant wife’s parents learnt of the marriage when she left her home to join her husband two months after the marriage, and she had left a note for them explaining what she had done. The Tribunal accepted the applicant wife’s evidence that she had not had any contact with her family since then. The Tribunal accepted that the applicant wife has been disowned from her family. The Tribunal accepted that she will be boycotted by her family and has been disinherited. However, the Tribunal did not accept the applicant husband’s claim that his family were being threatened by the wife’s family or the community. The Tribunal did not accept the claim that the wife’s family would have any interest in threatening the applicant’s family given that they have disowned and rejected the applicant wife.
The Tribunal accepted at [38] of the decision that if the applicant returns to India she will have no contact with her family. They disowned her. The Tribunal did not accept her claim that her father would pursue her if she returned to India, and did not accept a claim that she would face retribution in the form of physical violence or humiliation. The Tribunal did not accept, and this was in reliance of MMM v MIA [1998] 90 FCR 324, that ostracism by her family, of itself, constituted persecution. The Tribunal also didn’t accept the applicant’s wife’s claim that the husband’s family will try to separate them and forcibly marry the husband to someone else, and this was particularly in light of there being extremely limited contact between the husband and his family in the past four years.
The Tribunal did not accept that the applicant faced a real chance of persecution from either her parents, her family members, members of her caste now or in the foreseeable future. Whilst considered her claims of membership of particular social groups being women of the Patel/Leva/Leuva caste community, or women of the Patel/Leva/Leuva caste community who marry of their own choice or any other reason. That appears at [42] of the decision. The Tribunal went on to consider the applicant’s claim that that would leave their family economically destitute, and also considered the applicant’s claim that she would be denied employment opportunities because of her physical disability. The Tribunal found that the applicant husband has worked in a semi-skilled capacity in India previously and found that the applicant wife is highly educated, and that in considering country information with respect to people with disabilities in India, found that given the applicant’s level of education she would have better prospects of employment when compared with other disabled persons. Further, the Tribunal found that the social stigma with respect to disability in India was higher with respect to those with mental illnesses and mental retardation. That appears at [47] of the decision.
The Tribunal found in assessing the information before it that there was no suggestion that the applicant would be excluded from the job market because of her disability, therefore the Tribunal rejected the claim that by reason of the applicant wife’s membership of a particular social group being people with disabilities in India, or women with disabilities in India, that she would face persecution. The Tribunal rejected the applicant’s claim that she would be alone and have to fend for herself because she would have her husband with her. The Tribunal also addressed the applicant’s claim that if she went back to India people would make fun of her and harass her because of her disability, because she had suffered that in the past. The Tribunal found that this does not amount to persecution within the requirements of section 91R(1) of the Migration Act.
The Tribunal found that, having considered the applicant’s claims, that the applicants did not have a well-founded fear of persecution for a Convention reason. The Tribunal then went on to consider as it was required to, the complementary protection obligations. Again, it assessed the relevant legislative provisions and country information, and did not accept that there was substantial grounds for believing that she would suffer as a result of returning to India. Therefore, found that Australia did not owe the applicants complementary protection.
The applicants appear before the Court without legal representation. The matter was initially listed before me last week and on that occasion I granted a short adjournment for reasons I gave at that time. The applicants in their application for judicial review seek an extension of time on the basis of being asylum seekers without resources available to them, and that it was in the interests of justice to allow the application out of time, and with respect to the review grounds, plead that the decision was affected by an error of law and that the applicants were denied procedural fairness. I also refer to having made an application for assistance through Victorian Legal Aid.
The application is some 14 months out of time, which is a significant period. Section 477 of the Migration Act requires an application for judicial review to be filed within 30 days of the migration decision to be made. The Court has a discretion to extend time pursuant to section 477 subsection (2). The applicants have complied with the requirement that that application be made in writing, and they have specified they have also complied with the requirement to give reasons as to why it is necessary in the administration of justice to make the order.
In considering whether or not to grant the extension of time the Court must consider whether or not it is necessary in the interests of justice to make that order. Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) also address this point. There have been several Full Court authorities addressing the issue of the consideration as to whether or not to grant an application for applicants to proceed out of time. The decision of SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [45]-[48] provides a convenient summary, and that is a decision of Foster J as follows:
[45] Section 477(2) requires an applicant for an extension of time to make his or her application in writing and to specify in that application why the applicant considers that it is necessary in the interests of the administration of justice to make the order (s 477(2)(a)). The section also requires that the Federal Magistrates Court be satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time before making such an order. The material to which the Court’s attention will ordinarily be directed for the purpose of the Court’s consideration of whether it is so satisfied will be the material relied upon by the applicant for an extension of time. The Federal Magistrates Court will not be confined to a consideration of the applicant’s material alone but that material will nonetheless constitute an important part of the material upon which the Federal Magistrates Court might reach the requisite level of satisfaction.
[46] There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
[47] The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[48] The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
There have also been recent Federal Court decisions discussing this issue in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.
A significant part of the reason for delay by the applicants in this case is the choice to seek Ministerial intervention. That request for Ministerial intervention appears in the Court Book starting at page 247. The Tribunal’s decision was handed down on 30 June 2014 so the application and request for Ministerial intervention was outside the 35 day time limit for filing a judicial review. It has been held in a case of Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 amongst other cases that the decision to apply for Ministerial intervention is not, in itself, an adequate explanation for a delay in filing the application. Another decision that deals with this is MZZGC v Minister for Immigration and BorderProtection [2015] FCA 842 at 15.
When considering the interests of the administration of justice, it is as set out in Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344, useful to consider the following factors:
a)The explanation for delay. I have set out those explanations, being the lack of resources available to the applicant. The respondent says that in the absence of any further particulars, a bare assertion about lack of resources is not a sufficient explanation and the respondent also says that it’s inconsistent with the applicant’s having retained a private law firm to submit the request for Ministerial intervention. It is certainly not uncommon for applicants in migration matters to appear without the assistance and benefit of legal representation, which is very difficult for applicants to navigate the technical area of migration law, but that does not assist in an explanation for the delay.
b)The extent of the delay. It is significant, being some 14 months. I am not satisfied that the explanation is adequate. There is no doubt that the impact on the applicant, particularly from their point of view, is a significant one. The applicants sought to, in effect, raise some new issues today, that were really seeking to invite the Court to engage in a merits review that it’s not permitted to do. The applicants are limited to the evidence that was before the Tribunal. There is no real prejudice to the respondent, and that has not been argued.
c)The interests of the public at large. The time limits are not opposed in an arbitrary sense, but are imposed in assistance of the administration of justice and the Court processes in having matters brought before the Court in a timely matter and not having matters brought that are potentially years out of date.
d)The final issue is to consider the merits of the substantive application. It is clear that the applicants do not need to establish that they would be successful in their application for judicial review. They only need to establish that they have an arguable case. That is a much lower threshold. It also has to be noted that this application is also listed for a show cause hearing today, and the issue of whether or not the applicants have an arguable case is relevant to show cause hearings as well. That is clear from rule 44.12 of the Federal Circuit Court Rules 2001. Pursuant to subsection (b) the Court can adjourn the proceedings and list it for a final hearing if it is satisfied that the applicants have raised an arguable case for relief.
In my view, having considered the material in the court book, and in particular the Tribunal’s decision, it is clear that the Tribunal addressed each of the claims that the applicant’s raised and that for reasons that were available to it on the evidence affirmed the delegates decision to affirm the refusal to grant the protection visa. I should address the further cases referred to by the respondent today in response to the arguments the applicant raised, in raising concerns about their daughter who was born in Australia and her future and also the applicant wife’s physical disability and mental health. It is quite clear from the Tribunal’s decision that the Tribunal was considering the applicants as a family unit. It is also clear that the Tribunal dealt with the applicant’s physical disability. The decision of SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27] makes plain that fresh evidence is not permitted, unless it goes to a jurisdictional error and that is not the case here. MZXHY v Minister for Immigration & Citizenship & Refugee Review Tribunal [2007] FCA 622 at [8] states that it’s not open to the applicant to admit new evidence if it goes to the purpose of seeking that the Court disagree with the factual conclusion of the Tribunal. The Tribunal is the sole arbiter of fact and not the Court, and I have set out the previous findings of the Tribunal with respect to the applicant’s physical disabilities. The Tribunal also found that the applicant would not be denied medical treatment in India and had not been denied it in the past.
Having considered the material I am satisfied that the applicants do not have an arguable case for relief, therefore it would not be in the interests of the administration of justice to grant the extension of time, and I note that even if the extension of time was granted the application would still be dismissed today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 for the same reason. That is, the applicants have not raised an arguable case for relief.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 31 October 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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